I’ve been telling you for years about the cracking foundation of the world of local broadcasting. Well, new FCC Chairman Tom Wheeler is asking his fellow Commissioners to vote March 31st on a proposal from him that would stick a rather large knife in the side of broadcast companies. TVNewsCheck describes it this way:

FCC Chairman Tom Wheeler will ask his fellow commissioner to vote March 31 on a proposal that will ban joint sales agreements and joint TV station retransmission consent negotiations, a senior FCC official told reporters Thursday.

The JSA and retransmission consent bans will become effective immediately, assuming a majority of the agency’s commissioners vote in support of the regulations, an FCC source says.

A senior FCC official also says the JSA crackdown will apply to pending station transactions at the FCC, and provide up to two years for existing JSAs to unwind.

The official also says Wheeler is proposing to adopt an expedited waiver review process under which broadcasters will be able to seek waivers for JSAs.

If a broadcaster can show that a particular JSA serves the public interest, it may be able to get a waiver to continue a joint sales sharing deal, the FCC said.

You need to go read the link, because the reaction in the comments and at the end of the article are worth much.

Here’s my take. Between Joint Service Agreements, Local Marketing Agreements, Shared Service Agreements, Transitional Service Agreements, shadow corporations and probably a host of others I can’t recall, it’s really hard to tell who owns the network affiliate down the street. These things have so changed the face of broadcasting — by reducing the number of faces on the air in many, many markets — that the real losers have been the same public that broadcast spectrum is given to these people in the first place to serve. It’s all corporate doings nowadays, which makes the whole industry seem like greedy Wall Street monsters. Many more people will lose jobs, because these corporations exist to line the pockets of those who run them. Nothing wrong with that, of course, but it’s not, I suspect, what that spectrum was originally intended to create.

The upside is that this move will put pressure on broadcasters to participate in spectrum auctions, which will grow the mobile Web, while will continue to advance what Jay Rosen calls “The Great Horizontal.” One to one communications, without middlemen, is one of the beauties of the network, and broadcasters’ one-to-many model is increasingly archaic. Ahead lies a reworking of everything, including many laws that were created for the days of one-to-many, and frankly, I can’t wait. Broadcasting will continue, at the very least as cable channels, but this proposal, if approved on March 31st, means a major blow to certain groups of people who thought their money tree had permanent roots.

And think about it, one potential end to this is the irrelevance of Aereo, which requires broadcast signals in order to justify its business model.

The Obama Administration supports broadcasters against Aereo and then turns around and says, “We’ll eliminate your ownership loopholes and end consolidated retransmission negotiations.” Frankly, broadcasters would have preferred it to be the other way around.

The New York Press Club has fired off a letter to police commissioner Raymond Kelly (I thought it was Tom Selleck) demanding an explanation among other things for a rather striking rule change impacting the press. Reporters used to be able to obtain police reports at the precincts they were covering, but they must now go to a central office. Here’s the letter:

December 9, 2013

Commissioner Raymond W. Kelly
New York City Police Department
One Police Plaza
New York, NY 10038

Dear Commissioner Kelly:

On behalf of the New York Press Club, I strongly protest NYPD’s latest decision to cut-off a long-standing source of information, vital to New Yorkers.

The policy change to deny media access to complaint reports at the precinct level is, to us, another example of blatant hostility by NYPD toward locally-based media outlets that disseminate information about neighborhood occurrences to residents of those neighborhoods. We are stumped by the question of why NYPD now requires community reporters to scurry down to the notoriously uncommunicative and uncooperative DCPI office to examine incident reports that originate locally. One inescapable conclusion about the new policy is that NYPD wishes to “edit” or otherwise obfuscate the information in question. At the very least, the policy unnecessarily complicates public access to information and data that should instead be freely available.

This new restriction on openness and accessibility is, in our opinion, another disturbing example of the department’s recent, relentless slide towards non-accountability. We therefore request restoration of the previous, long-standing policy and its expansion to all precincts. We also request, for publication, an explanation of the reasoning behind NYPD’s latest decision to constrict access.

This is a big deal, folks, and I’m surprised I haven’t seen it elsewhere. It’s a big deal, because it signals a reaction to the concept of “everybody’s a reporter.” It’s the kind of thing we’re going to see repeated as the institutions of Western culture are challenged by weakening silos and authority that’s spread horizontally across a world that used to be entirely top-down. The press has always been defined by its access, but as Mr. Seary notes above, even press club members themselves face a form editing in the oldest information gathering process on the planet — the police beat.

While nothing about this is good for the First Amendment, it does point out the absurdity of trying to govern a horizontal culture with top-down rules.

Every once in awhile a quote comes a long that’s bound to stick around for awhile, one you’ll likely see many times downstream. This one is from U.S. Supreme Court Justice Samuel Alito (a George W. Bush nominee) during yesterday’s hearing on cursing and nudity over broadcasting’s airwaves. Suggesting that the market itself should be allowed to deal with the issue without regulatory interference, Justice Alito made this remarkable statement:

Broadcast TV is living on borrowed time. It is not going to be long before it goes the way of vinyl records and eight-track tapes.

What’s most remarkable here is its source, the mind of a U.S. Supreme Court Justice. If this is the way a member of the final court in the land views things, broadcasting has no hope of ever finding relief in the courts against market forces that threaten its existence. The spectrum that the government licenses to broadcast companies is eventually going to wireless broadband, and that will doubtless end up in the courts. Alito is not alone in this belief, but he’s the highest ranking government official that I’ve ever heard say it.

My friend Ethan Beute asked via Twitter “how long?” I think this is going to come upon the industry much sooner than later. It will appear like a thief in the night, although it has been visible and approaching for many years. Broadcasters have been playing defense all this time, while intruders from Silicon Valley and elsewhere have been staging guerrilla and flanking attacks with armies funded by venture capital. Lobbyists representing the NAB and local interests are at war with those representing the Telcos and others, and it will likely be bloody. In the end, though, it’s pretty hard to deny the interests of the public in the matter, and that is strongly tilted to the wireless broadband side.

My advice to broadcasters has always been to move forward strategically on two separate paths. Get as much as we can out of the mass media market available to us via those airwaves and at the same time develop new ways to make money. Mass is shrinking and fragmenting. We can’t “fix” that, but we can find new ways to replace the revenue. We must look outside our comfort zone, but we CAN drive the car and fix it at the same time.

The Columbia Journalism Review has presented — as a news commentary — a piece indirectly written by the FCC that favors the commission’s position in a key legislative issue involving broadcasters. The piece hypocritically trashes broadcasters for the same kind of behavior it represents, and it does so using the popular buzz term “transparency.” This is a smokescreen for what’s really being conveyed.

First, a little background.

Long ago, our government decided that “the airwaves” belong to the public and, therefore, should be regulated by the public’s representatives in Washington. Licenses to “use” the public’s airwaves were granted and maintained by the Federal Communications Commission (FCC), and so was born an antagonistic relationship between the licensor and the licensees. Broadcasters have long held the upper hand in this antipathy. They are a powerful group with the ability to easily reach the public “back home,” where legislators raise money and votes. The National Association of Broadcasters was and is a powerful lobbying organization.

However, there’s been a recent shifting of that power, and things are a little different today. Armed with knowledge of a real demand for wireless broadband — which would use that same spectrum owned by the public — the FCC is turning up the heat on broadcasters. This will evolve to an all-out war that threatens the core value of all of broadcasting, and as the number of people receiving TVvia those airwaves alone dwindles, the case of the whole industry weakens. We’re in a season when broadcasters can extract value two ways: through subscriber revenues from cable providers and via advertising based on reach, at least some of which is over-the-air. As a group, therefore, broadcasters must promote both, and that hands the FCC an industry with a split focus to regulate. The FCC, however, cares mostly about that spectrum.

We can argue that cord-cutting raises the value of that over-the-air signal — especially in high-definition — but the longer technicians are able to innovate and resolve compression and other hi-def delivery problems, the more viable TV over IP becomes, and so we must admit that broadcasting’s “cake and eat it too” has a limited window. Broadcasters are well aware of this “problem,” and are working on so-called solutions that limit broadcast signals over IP to those geographic regions determined by broadcast licenses, thereby maintaining the old status quo. The weakness of one solution supported by the NAB and big broadcast companies (Syncbak) is that it requires the broadcast signal to verify geographic position within the market. This will be a hard proposition to sell Congress or the FCC as pressure mounts for broadband spectrum.

It’s into this scenario that an advisor to the FCC Chairman was begun writing what I would call “attack pieces” published in the Columbia Journalism Review. What or who is being attacked? Broadcasting, specifically television. It would be untoward for me to suggest that this is a deliberate effort to cloud the picture of the FCC versus broadcasting, but it does strike me as odd that such vertically-slanted stories would be published in the high church of the Columbia Journalism Review.

Steve Waldman is the writer/advisor, and his latest (This News Story Is Brought to You By…) is about how some television stations “allow sponsors to dictate content” within or close to newscasts. Mr. Waldman was the lead author of the FCC’s Information Needs of Communities study, which challenged broadcasters and helped lay the groundwork for the above arguments about the best use of spectrum.

One of Mr. Waldman’s major concerns in the CJR article is the use by certain television stations of video news releases disguised as news stories or other methods that those with a position employ to escape the wall of separation between news and advertising via the public’s airwaves. In making this charge in the Columbia Journalism Review, however, Mr. Waldman is guilty of the exact crime of which he accuses broadcasters, namely the presentation of a government position paper as news or commentary. I find it astonishing that the CJR would permit this, and yet, there it is.

That said, Mr. Waldman’s point is well-taken and broadcasters most certainly should be following the law and clearly labeling such as sponsored. But so should the Columbia Journalism Review, for this piece was surely presented — however indirectly — by the FCC.

A few weeks ago, I wrote of the coming clash between police and everyday people with cameras. The issue advanced significantly on Friday with a stunning Federal Appeals Court ruling affirming the First Amendment right of citizens to photograph or create videos of police while they’re on duty. Police agencies in some communities were using an odd interpretation of wiretap laws to confiscate the camera phones of bystanders, and the court rightly found that to be unconstitutional.

The decision has far-reaching implications that go beyond the mere taking of pictures at crime, disturbance and accident scenes. By granting everyone this “right,” this ruling redefines “the press” in this country by shattering the myth of privilege associated with working for a so-called “legitimate” news organization. Some will cry that it opens Pandora’s Box, because a clearly defined “press” helps the machine of modernity function. This decision is potential chaotic, for example, to those cultural institutions who have a vested interest in keeping their “news” in the hands of a professional class (that can be manipulated). Think of an agency holding a press conference, for example. If press freedom applies to everybody, then that agency cannot restrict access to only those who work for a news organization.

The decision should make anybody in a traditional newsroom shutter. As we’ve been saying for years, the personal media revolution — what Jay Rosen calls “the Great Horizontal” — IS the second Gutenberg moment in Western civilization. It destroys the hierarchical infrastructure of the modern world and scatters authority across the people that the hierarchy was supposed to serve. Hierarchies, however, are comprised of human beings, and each has drifted into self-preservation and self-advancement rather than service.

It’s an enormous cultural shift, because power disrupted impacts everything. If the First Amendment press freedoms now belong to everyone, we clearly need an entirely different way of thinking about how information gets created and distributed in the culture. We’re going to hang onto the old for as long as we can, but we MUST be exploring ways to compete against that model, because the path for others to compete against us is now much simpler.

The ruling itself is fascinating, and I strongly recommend you go read it. The language is clear, as the following excerpts reveal. The case itself originates from a 2007 incident in Boston. Simon Glik was arrested for using his cell phone to film several police officers arresting a young man on the Boston Common. The case was thrown out in municipal court, but Glik sued. The Federal District Court affirmed the suit, which was automatically appealed to the 1st Circuit Court of Appeals, which issued its decision Friday.

The defendants moved to dismiss Glik’s complaint under Federal Rule of Civil Procedure 12(b)(6), arguing that the allegations of the complaint failed to adequately support Glik’s claims and that the officers were entitled to qualified immunity “because it is not well-settled that he had a constitutional right to record the officers.” At a hearing on the motion, the district court focused on the qualified immunity defense, noting that it presented the closest issue. After hearing argument from the parties, the court orally denied the defendants’ motion, concluding that “in the First Circuit…this First Amendment right publicly to record the activities of police officers on public business is established.”

…is there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative.

It is firmly established that the First Amendment’s aegis extends further than the text’s proscription on laws “abridging the freedom of speech, or of the press,” and encompasses a range of conduct related to the gathering and dissemination of information. As the Supreme Court has observed, “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.”

As I wrote a few weeks ago, police in many places are using the smokescreen of wiretap law violations to avoid scrutiny, and I warned of the consequences:

The law of unintended consequences is waiting in the wings, however, as governments try to press their need for authority over this in public. The First Amendment is the “first” for a reason, and in the age of its writing, it protected those who bought ink by the barrel and those who printed their pamphlets any way they could.

…In this country, the right to report news isn’t reserved only for élite professional organizations, despite the reality that we’ve operated that way for a long time. We want and need to stay as far away from “licensing” as possible, for who then would report on those providing the licenses? Times have changed, and there’s no going back. The best we can do is adapt, and in this issue, that means getting involved.

Technology is altering many of the core beliefs and functions of the modernist world. This is why I’ve maintained a blog for the past ten years under the banner “The Pomo Blog.” Pomo stands for postmodern, and all of my ideas, suggestions and memes flow from the belief that modernism died the day the Web was created. This simple observation has been validated almost every day.

We want and need things to stay the same, because it’s what we understand. This includes media, so let me repeat for those with ears to hear that our future is along a different path, and the sooner we get on it, the better. There is no value in being the last buggy whip maker.

The inevitable conflict between people with cameras and people in authority is heating up, and news organizations need to be doing more than just paying attention. This is one of those sticky issues between the personal media revolution and traditional media, because one’s perspective on the matter determines where you stand. If you’re a “member of the press,” you enjoy certain freedoms at crime scenes, etc., and your concern about the rights of everyday citizens is limited to whether their pictures or video are of sufficient interest to warrant insertion in your own work. If you’re an everyday Joe with a camera, your interest is more self-driven, but both groups are heading for a showdown with authority sooner or later.

The real sore spot is when that which is being photographed is authority operating outside their authority, as in the case of overzealous cops beating the crap out of somebody. You can apparently take all the pictures you want on a public street, unless the subject in the viewfinder makes law enforcement look bad.

In an utterly chilling report from independent news source Alternet.org, reporter Rania Khalek writes: “More and more people use their smartphones to record police misconduct. But laws against wiretapping are being used to intimidate and stop them.” If the public is the new media (I’ll get to that in a minute), then our culture has a serious problem on its hands.

One would think the fear of videographers on every block would be a powerful deterrent to police misconduct. However, legislatures are not taking this newfound power against police abuse lightly. In at least three states, it is illegal to record any on-duty police officer, even if the encounter involves you and may be necessary to your defense, and even if the recording is on a public street where no expectation of privacy exists. The legal justification is usually based on the warped interpretation of existing wiretapping or eavesdropping laws with statutes against obstructing law enforcement sometimes cited.

Illinois, Massachusetts and Maryland are among the 12 states where all parties must consent for a recording to be legal. Since the police do not consent, the camera-wielder can be arrested and charged with a felony.

…The most pernicious prosecutions to date have taken place in Illinois, where the sentence for recording a police officer is considered a class 1 felony — on par with a rape charge — and can land a person behind bars for more than a decade.

These cases are, of course, thrown out of court, but that hasn’t stopped the arrests. Police have argued that they need protection from all these cameras, because it might inhibit officers from doing their jobs in the field (here, here, here).

Khalek’s article is worth reading, because it references many current and past cases and reveals a growing tendency on the part of police in several locations to confiscate the cameras and phones of onlookers in the name of seizing evidence.

In Miami Beach on Memorial Day weekend, 12 cops sprayed Raymond Herisse’s car with 100 bullets, killing him. Herisse was a career criminal who police say tried to run over officers with his car. The police then seized and destroyed cameras and phones. One man, Narces Benoit, removed the SIM card from his phone and put it in his mouth. When his footage was later aired by CNN, police were caught in their lies about what went down.

CNN is an interested party in all of this, because of the huge success of its iReport unit. In a recent interview with Beet.tv, Lila King, Participation Director at CNN Digital and longtime head of iReport noted that contributions of citizen reporters have become “core of he the way we tell big, breaking stories.” iReport has 800,000 citizen reporters around the world, but those in the U.S. face ridiculous charges, if they cross the acceptable line with local law enforcement.

And, of course, citizen journalists aren’t the only ones subject to the overzealous behavior of cops. Last Friday in New York, Suffolk County Police arrested a freelance news photographeron obstruction charges when he refused to stop video taping police. Police say the charges will be dropped, but the point is that, again, legal authority was used to inhibit the gathering of news, and this must concern us all.

This issue is only going to get worse, and ultimately, it’ll be up to Congress and the courts to figure it all out. The law of unintended consequences is waiting in the wings, however, as governments try to press their need for authority over this in public. The First Amendment is the “first” for a reason, and in the age of its writing, it protected those who bought ink by the barrel and those who printed their pamphlets any way they could.

We’ve entered a new age, the depth and reality of which is being revealed more and more with each passing day. People with cameras will take pictures, and the truth is we NEED them to be taking pictures. Yes, there needs to be a few rules. Yes, there are privacy issues. Yes, authorities need to be able to do their jobs. In the end, however, there’s simply too much at stake for all this to play out without the input of professional media companies. Here are some thoughts about what we can do.

Each company needs to make a quality decision about whether the rights of citizens to photograph or take videos at news scenes is something we wish to support. Assuming the answer is “yes,” then we must get involved, in the courts by filing friend-of-the-court briefs and at the legislative level, both locally and nationally.

Local media properties would be smart to be proactive in the matter. Have meetings with local officials to determine their wants and needs and encourage their participation BEFORE it becomes a problem in your market.

Involve the public in the effort and solicit their participation through social media or otherwise.

Own the story. This is something that impacts anybody with a smartphone. What ARE their rights? If we want their pictures and their videos, we need to make sure we’re publicly supporting their actions.

In this country, the right to report news isn’t reserved only for élite professional organizations, despite the reality that we’ve operated that way for a long time. We want and need to stay as far away from “licensing” as possible, for who then would report on those providing the licenses? Times have changed, and there’s no going back. The best we can do is adapt, and in this issue, that means getting involved.

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Transparent Terry

I blog for two reasons. One, it is the greatest method ever created to challenge my own assumptions, something that I believe is necessary for anyone who wishes a seat at the discussion table... Read More…